VOLUME 57 | 2012/13
DESMOND MANDERSON
The Law of the Image and the Image of the
Law: Colonial Representations of the Rule
of Law
57 N.Y.L. Sch. L. Rev. 153 (2012–2013)
ABOUT THE AUTHOR: Future Fellow at The Australian National University, where he is jointly
appointed in the ANU College of Law and the Research School of Humanities and the Arts. From 2002 to
2011, he held the Canada Research Chair in Law and Discourse position at McGill University and was also
Director of the Institute for the Public Life of Arts and Ideas. A version of this essay appears as Desmond
Manderson, Governor Arthur’s Proclamation: Images of the Rule of Law, in Law and Art: Justice, Ethics
and Aesthetics 288 (Oren Ben-Dor ed., 2011) and appears in the current collection with the kind
permission of the editor and publishers.
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THE LAW OF THE IMAGE AND THE IMAGE OF THE LAW
I.
INTRODUCTION
In this article I present an argument about the rule of law—one which I think
has not been adequately articulated previously. To develop this argument I want to
draw on two distinct perspectives. The first is historical. In order to try to understand
the ways in which ideas about the rule of law operate, I return to a powerful, yet
perhaps unfamiliar, statement of rule of law values from colonial Van Diemen’s Land
(now called Tasmania and part of the Commonwealth of Australia) in the first part
of the nineteenth century. I contrast this statement with a notorious abandonment of
those values at the same time and in the same place: the genocide of its indigenous
inhabitants. The historical comparison will help us see just how it is that governments
then and now seem able to hold simultaneously in their heads two contradictory
realities—the rule of law on the one hand and the treatment of indigenous people on
the other—without, apparently, exploding at the irony of it.1
The second perspective, related to the first, is methodological: in trying to
comprehend what it means to talk about the rule of law in relation to colonized
peoples, this essay focuses not on essays in political theory or pieces of legislation, but
on two art works. One of the earliest and most celebrated articulations of the “rule of
law” in all of Britain’s imperial history is to be found in a series of illustrations that
spoke directly to the colonial government’s relationships with Aboriginal people.
These images afford a remarkably complex, revealing, and relevant representation of
the rule of law. But they should not be understood as merely illustrative of the law, if
such a distinction can be maintained. Art and law are here entwined and inseparable.
That one of the most significant statements of the rule of law in Australian
colonial history was produced for Aboriginal people and in the form of a picture tells
us something. In the first place, the rule of law is not merely a legal or technical
term. It is a social fact. To understand it properly, our sources must extend beyond
the pages of textbooks and law reviews (present company excepted) into the social
world—its representations and deployment in art, literature, children’s books, movies,
and newspapers. Secondly, the genre of a work of art brings distinct and important
dimensions to our legal analysis. On the one hand, images offer an accessibility and
an immediacy that should not be underestimated. By and large, one has to take my
word for the purport of the articles and written sources I am going to discuss. But
the images that form the basis of this article are available to any reader who can draw
(so to speak) their own conclusions. The reciprocity between writer and reader that
this establishes contributes significantly to the richness and power of the interpretative
1.
In Desmond Manderson, Not Yet: Aboriginal People and the Deferral of the Rule of Law, 29/30 Arena j.
219 (2008), I develop an extended application of these ideas to contemporary indigenous policy in
Australia, making the argument that radical changes to government policy and legislation in 2007
entrenched radical and unexamined departures from rule of law principles in line with the historical
argument I develop here. See generally Northern Territory National Emergency Response Act 2007 (NT)
(Austl.); Social Security and Other Legislation Amendment (Welfare Payment Reform) Act 2007 (NT)
(Austl.); Families, Community Services and Indigenous Affairs and Other Legislation Amendment (Northern
Territory National Emergency Response and Other Measures) Act 2007 (NT) (Austl.).
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conversation.2 On the other hand, images have an essential role to play as we learn
more about how communities understand law and justice. Images have a density to
them, a complexity in their depiction of the relationship of ideas and forces. Their
non-linearity makes them a particularly appropriate means of communicating
paradoxical, ambiguous, or double-edged ideas. Writing, particularly academic or
legal writing, privileges and perhaps even demands the communication of a single
well-organized logic. 3 Art is more multiple than that.4 The image’s honesty—its
capacity to say to us more even than it intended to say—to reveal assumptions,
tensions, and paradox, is part of what makes it such a genuinely revelatory and
gravely underutilized legal resource.
II. AN AUSTR ALIAN MY TH
The “rule of law” is a phrase that encompasses a body of principles which
endeavour to prevent, through law, the arbitrary or tyrannical exercise of state power
and to enhance society’s faith in government. One thinks immediately of Aristotle:
“[A] government of laws and not of men.”5 But in attempting to put some flesh on
this idea, to work out what kind of lawmaking is impermissible in a government
committed to legality, there is an enormous diversity of opinion. This is not the place
to spend too much time on a question that I have explored at greater length
elsewhere.6 Suffice it to say that scholars are divided between those who adhere to a
more or less formal conception of the rule of law and those for whom it must include
protections of substantive equality of treatment too.7 But theoretical debates will take
you only so far. If we want to better understand what it means to talk about the rule
of law, we need to be more specific about culture and context. And it is often in a
legal system’s treatment of minority or underprivileged groups that the rule of law is
challenged and developed.
With that in mind, I turn to the specific context of British colonial history and
to one of the earliest and most remarkable articulations of the rule of law in Australia.
This articulation is not in words, but in images. What is often called Governor
Davey’s Proclamation to the Aborigines 1816 (fig. 1) is an iconic document in Australian
2.
See M.M. Bakhtin, The Dialogic Imagination: Four Essays (Michael Holquist ed. & trans., Carly
Emerson trans., 1981).
3.
See Ivan Illich & Barry Sanders, ABC: The Alphabetization of the Popular Mind (1st
Vintage Books ed., Vintage Books 1989) (1988); Jack Goody, The Logic of Writing and the
Organization of Society (1986).
4.
See Law and the Image (Costas Douzinas & Lynda Nead eds., 1999).
5.
Iain Stewart, Men of Class: Aristotle, Montesquieu and Dicey on ‘Separation of Powers’ and ‘The Rule of
Law,’ 4 Macquarie L.J. 187, 194 (2004).
6.
See Desmond Manderson, Kangaroo Courts and the Rule of Law: The Legacy of Modernism
(2012).
7.
Brian Z. Tamanaha, On the Rule of Law: History, Politics, Theory 3 (2004).
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FIGURE 1
Frame A
Frame B
Frame C
Frame D
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history.8 A full fifty years before A.V. Dicey,9 it represents an idea of the rule of law
occasioned by the clash between colonial and indigenous peoples. Confronted by the
clash of two radically different cultures and mutually incomprehensible languages,
the Proclamation does so without using words—a picture that is also a law.10
First circulated in Van Diemen’s Land in the early part of the nineteenth century,
the Proclamation was largely forgotten until it turned up during renovations of Old
Government House in Hobart. It formed part of the Tasmanian display at the
Melbourne Intercolonial and the Paris Universal Exhibitions in the 1860s,11 a proud
statement of the benevolent virtues of the imperial civilizing process.12 Yet for all its
fame, few have bothered to really analyze the picture. Descriptions of the Proclamation
mostly cast it as an explanation of martial law or as a warning to the Aborigines of
the consequences “of continuing in their present murderous and predatory habits.”13
Lyndall Ryan’s pioneering The Aboriginal Tasmanians erroneously interprets it as
endorsing the separate and harmonious living of two cultures,14 whereas it clearly
represents the coming together and indeed conformity of those cultures under British
rule. The Proclamation is a myth—an object so familiar that it has ceased to be seen.
Images are treacherous; labels more so. As it happens, Governor Davey’s Proclamation
to the Aborigines 1816 had nothing to do with Governor Davey. It does not date from
1816. And it is not really a proclamation. It was commissioned by LieutenantGovernor Sir George Arthur; in 1830, around one hundred copies were published by
the government printer in Hobart, placed on wooden boards, and disseminated.15
The misattribution dates from its re-discovery in the 1860s and might be explained
in two ways. First, by setting the date back almost a generation, the notion that the
British colony was founded on the principle of the rule of law is thereby promoted.
Law always needs some mythic retrospectivity to shore up its legitimacy—a penal
colony established by dispossession and maintained by violence over whites and
blacks alike, especially.16 The violence and chaos that mark the birth of any new legal
order thus become cloaked in a myth that emphasizes instead its inevitability, its
order, and its naturalness. By the 1860s, it surely served the interests of Tasmania’s
8.
Governor Davey’s Proclamation to the Aborigines (c. 1828–1830). Oil on huron pine board, 36
x 22.8cm, State Library of Tasmania. Kind permission to reproduce acknowledged.
9.
A.V. Dicey, Lectures Introductory to the Study of the Law of the Constitution (2d ed.
1886).
10.
The words at the top and bottom of Figure 1 were added later; probably at the time of the republication
of the document for the Melbourne Intercolonial Exhibition, 1866.
11.
The Dictionary of Australian Artists 274 (Joan Kerr ed., 1992).
12.
Penelope Edmonds, Imperial Objects, Truths and Fictions: Reading Nineteenth-Century Australian Colonial
Objects as Historical Sources, in Rethinking Colonial Histories: New and Alternative
Approaches 73, 83 (Penelope Edmonds & Samuel Furphy eds., 2006).
13.
The Dictionary of Australian Artists, supra note 11, at 273.
14.
Lyndall Ryan, The Aboriginal Tasmanians 97 (Allen & Unwin Pty Ltd. 2d ed. 1996) (1981).
15.
See The Dictionary of Australian Artists, supra note 11, at 272–74.
16.
See generally Jacques Derrida, Declarations of Independence, 7 New Pol. Sci. 7 (1986).
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free settlers to inject the rule of law into their narrative of legitimate settlement, as
early as possible.
Secondly, Thomas Davey cuts a more attractive figure as author of the
Proclamation than Sir George Arthur. As governor, Davey had protested in 1814 his
“utter indignation and abhorrence” about the kidnapping of Aboriginal children.17
But Governor Arthur was an altogether more paradoxical figure, a man who
oscillated wildly between expressions of concern for the Aborigines and military
campaigns against them; between inciting white settlers to kill Tasmania’s first
inhabitants and expressing outrage when they did. He was a man who combined
eruptions of extreme action with outbursts of remorseful reflection.18 Above all, as
the man behind the notorious Black Line, the dragnet which attempted to corral like
cattle the Aboriginal population of the whole island, Arthur symbolizes a way of
thinking about the original Tasmanians that “would be laughable were it not so
criminally tragic.”19 Such a background surely taints and complicates the promise of
the rule of law.
The cartoon was suggested and apparently drawn by Arthur’s Surveyor-General
George Frankland, and he in turn was inspired by Aboriginal bark paintings. In
1829, Frankland wrote to Arthur,
I have lately had an opportunity of ascertaining that the Aboriginal natives of
van Diemen’s Land are in the habit of representing events by drawings on the
bark of trees . . . . In the absence of all successful communication with these
unfortunate people, with whose language we are totally unacquainted, it has
occurred to me that it might be possible through the medium of this newly
discovered facility, to impart to them to a certain extent, the real wishes of
the government towards them, and I have accordingly sketched a series of
groups of figures, in which I have endeavoured to represent in a manner as
simple and as well adapted to their supposed ideas as possible, the actual state
of things . . . . 20
The four panels of the pictogram (Frames A–D) trace a development, but not an
historical one. Instead, the pictures might be said to trace a movement from
philosophy to politics to law. Frame A describes abstract equality: men and children
are presented as the same regardless of colour, and the image of a white woman
nursing a black baby parallels that of a black woman nursing a white one. The image
is not a statement of what the rule of law requires, nor a statement of what the rule of
law will achieve, but instead it is a declaration of underlying principles. Two related
features of what we might call this “state of nature,” whose idealism and peacefulness
clearly owe more to Rousseau than to Hobbes, stand out. 21 The first is its
17.
Henry Reynolds, Fate of a Free People 90 (1995).
18.
Id.
19.
Lloyd Robson, History of Tasmania 225 (1983).
20. The Dictionary of Australian Artists, supra note 11, at 273.
21.
See Thomas Hobbes, Leviathan (Edwin Curley ed., 1994); Rousseau, The Discourses and Other
Early Political Writings (Victor Gourevitch ed., 6th prtg. 2003).
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individualism: humans are presented here not as belonging to societies or cultures.
The equality that matters is individual and pre-social, not collective and cultural.
Secondly, this individualism does not lead to a world in which everybody is different
from each other but in which everybody is fundamentally the same. The men have
identical dogs. White and black wear identical clothes (paradoxically, European
clothes are represented as “natural,” perhaps because the alternative would have
required Frankland to draw his white figures as naked as his black). Thus the
principles upon which the rule of law will be based are established—equality,
individual rights, and sameness.22 By presenting these principles of justice as a priori,
Frame A naturalizes their truth and their applicability to all societies.
In Frame B, we enter the world of politics and history. The Aborigines lose their
clothes and gain a community. White and Black are no longer depicted as the same;
instead, they are representatives of different societies, hands outstretched towards an
agreement. But this is clearly not an agreement between equals. Frame B depicts as
unproblematic the transfer of sovereignty from native to colonial rulers. A new
political authority and hierarchy is acknowledged, reflected in the movement from
left to right of the picture—from Aboriginal to British society, from naked to
clothed, from subservient to dominant. Neither Frankland nor Arthur were naïve.
They did not believe for a moment that this transfer was as consensual as Frame B
suggests. On the contrary, the Aboriginal people were waging a guerilla war against
the fledgling British colony. But, as Arthur remarked, “I cannot divest myself of the
consideration that all aggression originated with the white inhabitants.”23 Frame B
not only portrays the fait accompli of British sovereignty, it justifies it by looking both
forward and back: forward, to the day when the Tasmanian Aborigines might indeed
consent to the reality of that rule, and back, to the principles in Frame A according
to which they are given a reason—a duty, even—to consent to that rule. The picture
suggests the second part of a syllogism: because A, then B. Because of the universal
promise of the rule of law (Frame A), you should accept as legitimate the government
that is committed to uphold it (Frame B).
The final two frames expand this syllogism by explicating the legal consequences
of its logic. This is not philosophy in the subjunctive mood or history in the futur
anterieur, 24 but law in the present tense. Abstract principles are brought into the real
world, where violent justice is meted out to violent crime. The last two pictures
declare a substantive legal rule—the prohibition against murder. But more importantly,
they relate that prohibition to basic principles of justice and to the legitimate role of
the government in enforcing them. There is an implied threat in Frame C, but it is
clearly balanced by the implied guarantee of Frame D and by the insistence that in
each case the British army stands quite apart from the actors and neutrally enforces
the law. Governor Arthur had said as much in his very first Proclamation as governor,
22.
Will Kymlicka, Liberalism, Community, and Culture (1989); Will Kymlicka, Multicultural
Citizenship: A Liberal Theory of Minority Rights (1995).
23.
Ryan, supra note 14, at 94.
24.
See Derrida, supra note 16.
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some years previously: “The Natives of this island being under the protection of the
same laws which protect the settlers, every violation of those laws in the persons or
property of the Natives shall be visited with the same punishment as though
committed on the person or property of any settler.”25
But the pictorial Proclamation goes further than a mere statement of judicial
neutrality in its articulation of justice to Aboriginal peoples. It gives justificatory
pride of place, as we have seen, to principles of equality, individualism, and sameness.
Governor Arthur’s Proclamation presents a more complex and substantive reading of
the rule of law than one might have expected. It builds the legitimacy of law on a
promise to treat all persons, black or white, with equal respect for their individuality
and an assumption of their fundamental sameness.
III. GOVERNOR ARTHUR AND THE DEFERRAL OF THE RULE OF LAW
The paradox that this drawing raises lies in the difficulty of squaring “the real
wishes of the government,” as the Proclamation presents it, with the “the actual state
of things” in Van Diemen’s Land. At the very same time that Governor Arthur’s
Proclamation elaborated an expansive commitment to the rule of law, he was
extending martial law throughout Tasmania. Martial law had initially been declared
in 1828 in the face of Aboriginal resistance to colonial settlement.26 In February of
1830, a reward of five pounds was proclaimed for the capture of adult Aborigines
(two pounds for a child), describing them as “a horde of [s]avages” consumed by
“revengeful feelings.”27 In October of 1830, faced by “continued repetitions of the
most wanton and sanguinary acts of violence and outrage,” Arthur extended martial
law to “every part of this Island.”28 On October 7, “the [white] community . . . en
masse” was to spread out like a human chain across the whole island and, by moving
forward, herd the Black or Aboriginal Natives on to Tasman’s Peninsula where they
could be penned in once and for all.29
Yet martial law had always been understood as involving the suspension of the
rule of law.30 In 1829, the brutal murder of an Aboriginal woman was deemed by the
Solicitor-General to be beyond the reach of the common law precisely because it fell
25.
Reynolds, supra note 17, at 91.
26. Id. at 109.
27.
Colonial Secretary’s Office, Government Order No. 2, Hobart Town Gazette (Tas.), Feb. 27, 1830,
available at http://www.law.mq.edu.au/research/colonial_case_law/tas/cases/case_index/1830/notices_
concerning_aborigines/notice_1_1830/.
28. George Arthur, A Proclamation, Hobart Town Gazette (Tas.), Oct. 2, 1830, available at http://www.
law.mq.edu.au/research/colonial_case_law/tas/cases/case_index/1830/notices_concerning_aborigines/
notice_7_1830/.
29. Colonial Secretary’s Office, Government Order No. 11, Hobart Town Gazette (Tas.), Sept. 22, 1830,
available at http://www.law.mq.edu.au/research/colonial_case_law/tas/cases/case_index/1830/notices_
concerning_aborigines/notice_6_1830/ [hereinafter Government Order No. 11].
30. The connections with Agamben’s articulation and study of the state of exception are evident and need
not be spelled out here. See Giorgio Agamben, State of Exception (Kevin Attell trans., 2005); see
also R. W. Kostal, A Jurisprudence of Power (2005).
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under the very broad rubric of “necessary operations against the enemies.”31 Subject
to “an active and extended system of Military operations against the Natives
generally” and until the “cessation of hostilities,” Aboriginal Tasmanians were
specifically placed outside the rule of law.32 The Black Line, a dismal and notorious
folly, led to the capture of a grand total of two Aborigines and the shooting of two
more, but it was powerfully evocative of the colonial government’s attitude towards
them.33 The last full-blooded Tasmanian Aborigine died in 1876.
One might argue that Frankland’s depiction of equality under the law in Frames
C and D is a trick. The rule of law is not without its critics: in general, they argue
that its noble rhetoric disguises in two ways how those with power actually enforce
the law. First, the Proclamation does not tell the truth. Its promise of equal treatment
was a lie: in fact, white attacks on black people were virtually unpunishable, whereas
black attacks on white settlers were branded as the emanations of “a wanton and
savage spirit.”34 Secondly, the Proclamation begs the question: what does it mean to
treat people “equally” in the colonial context? The abstract thinking involved in
treating Aboriginal murder the same as that of a white settler ignores the difference
in meaning and context of their actions. Even if the British government were strictly
neutral as between the two deaths drawn by Frankland (which it was not), the rule of
law would still sustain settler society and destroy Aboriginal society precisely by
treating them “equally.” The claim in Frame A that whites and blacks are the same,
for example, and that each can just as easily nurse the other’s baby, misses the
underlying social and economic reality, which makes nonsense of the equivalence. A
black woman nursing a white baby is a servant in a rich man’s house; a white woman
nursing a black baby is probably a missionary who has taken the child from his
mother. Equal treatment perpetuates inequality every time it purposely turns a blind
eye to social and material difference. By ignoring the complexities of context, and by
lying about actual legal practices that were going on at the time, the rule of law
rhetoric systematically varnishes the injustices perpetrated by colonial power.
Such an analysis, powerful as it is, remains inadequate because it fails to take
seriously the beliefs of the participants, particularly their ideology of the rule of law.
Frankland, “innocent but misguided,”35 believed in the Proclamation. Arthur himself
consistently sought to justify the violence he unleashed in compassionate terms.
31.
Reynolds, supra note 17, at 112.
32.
Arthur, supra note 28.
33.
Clive Turnbull, Black War: The Extermination of the Tasmanian Aborigines (1948); House
of Commons, Van Diemen’s Land: Copies of All Correspondence Between LieutenantGovenor Arthur and His Majesty’s Secretary of State for the Colonies, on the Subject of
the Military Operations Lately Carried on Against the Aboriginal Inhabitants of Van
Diemen’s Land (1831) Parl. Papers No. 259 (U.K).
34. The words come from Report of the Committee appointed by Sir George Arthur according to which
Archdeacon Broughton had been instructed to inquire into “the origin of the hostility displayed by the
Black Natives of this island against the settlers.” N.J.B. Plomley et al., The Aboriginal/Settler
Clash in Van Diemen’s Land, 1803–31 9 (1992).
35.
The Dictionary of Australian Artists, supra note 11, at 273.
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There was this strange ambivalence in his gestures, which always seemed to sway in
confusion between the violent actions he sets in motion and the desire to protect the
Aborigines from those same forces. He insisted that “the Government puts forward
its strength on this occasion by no means whatever with a view of seeking the
destruction of the Aborigines.”36 Even the Proclamation which instituted the Black
Line concluded that
the Lieutenant Governor takes this opportunity of again enjoining the whole
community to bear in mind, that the object in view is not to injure or destroy
the unhappy Savages, against whom these movements will be directed, but to
capture and raise them in the scale of civilization by placing them under the
immediate control of a competent establishment, from whence they will not
have it in their power to escape and molest the White Inhabitants of the
Colony, and where they themselves will no longer be subject to the miseries of
perpetual warfare, or to the privations which the extension of the Settlements
would progressively entail upon them, were they to remain in their present
unhappy state.37
The name of the place on Flinders Island where the last of the Tasmanian Aborigines
were finally sequestered, and where they died, was Point Civilization. Their capture
and control was seen as the necessary first step in raising them to a civilized state, an
educative if coercive process that would also, presumably, serve to quench that savage
spirit in them.
Frame A of the pictogram presents Rousseau’s vision of the state of nature. But
Governor Arthur’s policy is bleaker and owes more to Thomas Hobbes. Hobbes had
argued in the seventeenth century that without an all-powerful government to
control our baser instincts, there would be nothing but warfare and misery, “and
which is worst of all, continual fear, and danger of violent death; and the life of man,
solitary, poor, nasty, brutish, and short.” 38 Arthur’s government embodies what
Hobbes famously termed the Leviathan: a monster, a tyrant who is nevertheless
necessary and whose violence and absolute power saves us—and more particularly in
this case the Aboriginal people—from the “warfare” and “privations” of our hideous
natural condition.
Accordingly, the pictorial Proclamation does not lie or conceal. It is meant
seriously, but it is to be read in the future tense. In effect, Governor Arthur was
saying to the first Tasmanians: “We do believe in your potential for equality and
sameness. We look forward to that moment when you will consent peaceably to our
governance. And we will then treat you as subject to the same laws and protections
as the rest of us. But until the conditions of sameness and equality are attained, all
bets are off.” Not “because A, then B, therefore C and D,” but “when A and B, then
C and D.” Governor Arthur’s Proclamation paradoxically justifies the un-depicted
36. Reynolds, supra note 17, at 109 (quoting a letter to the Brigade Major’s Office dated November 3,
1828).
37.
Government Order No. 11, supra note 29.
38. Hobbes, supra note 21, at 78.
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violence of the Black Wars, just as the Leviathan is justified, by asserting that it is
only by such violence that the promised land can be attained.
Some contemporary writers on the rule of law have made a broadly similar point,
and it is significantly different from the criticisms I noted above. They have
resuscitated Hobbes, Schmitt, and others, arguing that the liberal promise of a
society entirely governed by the constraints and protections of the rule of law suffers
from a fatal flaw. In Homo Sacer 39 and State of Exception,40 Giorgio Agamben argues
that, increasingly in modern society, the very plenitude of the rule of law gives rise to
these pockets of non-law, established by the ruler’s power—a power that is not
necessarily written down, but inheres in the nature of sovereignty to inaugurate or to
suspend the legal order.
It is surely unarguable that in recent years we have seen not the disappearance,
but rather the normalization, of the state of exception, such as in the treatment of
refugees or stateless persons and in the creation of juristic black holes like Guantanamo
Bay, wherein the U.S. President has precisely claimed the executive privilege to
determine the extent to which national and international law apply.41 The “war on
terror” is the most obvious example of a “state of exception” that has been justified
precisely as a way to protect the same ideals that are simultaneously scorned as
“quaint” or “outmoded.”42 Other examples abound; from Malaya to Pakistan, the
language of “national emergency” has been used to suspend legal principles. As
recently as 2007, Australia’s international commitments concerning racial
discrimination were specifically suspended when newly enacted laws profoundly
changed the treatment of Aboriginal Australians in the Northern Territory.43 This
legislation was directly justified by reference to a so-called “national emergency” in
those communities.44 In each case, governments have excised persons, groups, or
places from the protection of the rule of law. In each case, the creation of these black
holes has been justified through the language of “exception,” “exclusion,” “crisis,”
“martial law,” or “national emergency.” In each case, the values we stand for are held
39.
Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Werner Hamacher & David E.
Wellbery eds., Daniel Heller-Roazen trans., Bd. of Tr. of the Leland Stanford Junior Univ. 1998).
40. Agamben, supra note 30, at 129.
41.
See The Torture Papers: The Road to Abu Ghraib (Karen J. Greenberg & Joshua L. Dratel eds.,
2005).
42.
See generally Wash. Legislative Office of the ACLU, The Civil Rights Record of Attorney
General Nominee Alberto Gonzales (2005).
43.
Manderson, supra note 1, at 219.
44. Northern Territory National Emergency Response Act 2007 (NT) s 5 (Austl.); see also John Howard & Mal
Brough, Joint Press Conference to Announce the Northern Territory Intervention (June 21, 2007),
http://australianpolitics.com/audio/2000-2009/2007-archive; Media Release, Mal Brough, Minister for
Families, Community Services and Indigenous Affairs and the Minister Assisting the Prime Minister
for Indigenous Affairs, National Emergency Response to Protect Aboriginal Children in the NT,
Australian Government (June 21, 2007), http://www.formerministers.fahcsia.gov.au/malbrough/
mediareleases/2007/Pages/emergency_21june07.aspx. See generally Paul ‘t Hart, Crisis Exploitation:
Reflections on the ‘National Emergency’ in Australia’s Northern Territory, 26 Dialogue 51 (2007).
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not to apply—they are suspended or deferred—but at the same time and with equal
force, we are told that we need these exceptions, these pockets, if the rule of law is to
emerge or to survive at all.
The great historian of nineteenth-century England, E.P. Thompson, famously
described the rule of law as “an unqualified good.”45 He acknowledged the criticisms
of its partiality and hypocrisy, but insisted that the rule of law had a capacity to go
beyond the limited contexts in which the ruling class deploys it, operating instead as
an ideal with the power to hold those rulers to account. That remains true.
Nevertheless, Thompson fails, I think, to reflect adequately on how the ideal of the
rule of law itself might be used not merely to conceal oppression but to actively incite
it, either against those that do not live up to its criteria or in the context of events
that are imagined to require its suspension.
Governor Arthur’s Proclamation shows us exactly how this paradox works. The
annihilation of the rule of law is not subsidiary to its glorification but brought about
by it. It is not that Aboriginal people did not deserve the rule of law. On the contrary,
it was their own “savage spirit” that prevented their attaining it. And it was to quench
this savage spirit that the rule of law had to be suspended in order that the Leviathan
of the British Empire might first—literally and figuratively—bring them to Point
Civilization. The very belief in the rule of law highlighted the apparent inadequacy of
the Tasmanian Aborigines to benefit from it, and this in turn justified any and all
measures to impose legal and social order on them. The more beautiful the ideal, the
more inadequate the present state of the natives seemed. The more sincere the British
commitment to our universal sameness, the more Aboriginal difference and resistance
seemed a “wanton” “fierceness” to be subjugated or a “weakness” to be fixed.
The images of Governor Arthur’s Proclamation, juxtaposed against the colonial
government’s actual policy, do not reveal lies or evasions. On the contrary, they are
cause and effect. It was because Arthur and Frankland, and many like them, believed
so fervently in the rule of law that Aboriginal people, on the one hand, were always
disappointing them and, on the other, required emergency action or exceptional
measures to drag them into civilization’s embrace. Governor Arthur’s Proclamation did
not establish the rule of law in Tasmania; it justified the state of exception. Saint
Augustine said, “Give me chastity and continence, but not yet.”46 Sir George Arthur
said, “Lord, give me the rule of law—but not yet.” The goals of the Proclamation
remained, but making good on them was always deferred to some indefinite future
when Aboriginal people would at last be deemed ready for it.
Meanwhile, the rule of law proved to be just another rod with which to chastise
the first Tasmanians for their failure to live up to our expectations. With this idea of
cause and effect in mind, we can return to Frame A of Governor Arthur’s Proclamation.
We might read it as a promise of actual equality. But we could just as easily—in fact,
perhaps more easily—read the image literally, as insisting that Aboriginal people
45.
E.P. Thompson, Whigs and Hunters: The Origin of the Black Act 267 (1975).
46. Saint Augustine, Book Eight, in Confessions 139, 152 (Hendricks Publishers Mtg. 2004) (c. 400
A.D.).
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should not just be treated but should be the same, that they should wear the same
clothes as us, bring up their children like us, even train their dogs like us. This is of
course not a message of equality, but of assimilation. It demands that what changes
is not our treatment of other races but their behaviour. Once again, it is not just that
the work of art is ambiguous, but that it means both these things and helps us see the
relationship between them. For centuries, one emergency after another, colonial and
post-colonial regimes have postponed treating indigenous people with justice, deciding
that they are not yet worthy of it or up to it. Now, as in 1830, this is the dark side of
the glowing promises made by the rule of law—the insidious consequences of the
righteousness it encourages.47
IV. ANOTHER ICON
The assimilationist undercurrent of Governor Arthur’s Proclamation, together with
the paradoxical consequences of its ideals, suggest that we ought to look elsewhere to
find visions of justice in the context of the colonial and post-colonial world. The
Proclamation is not the only instance of pictorial law from which we might learn.
Almost two centuries earlier, another invading colonial power sought to communicate
with another indigenous people, likewise in the absence of a shared language and
across a cultural abyss. The Two-Row Wampum records a treaty, several versions of
which are said to have organized relations between North American settlers and the
Iroquois people (themselves a federation) in colonial times, going back as far as one
made with the Dutch in New York in 1613 and another with William Penn in 1682.48
As Governor Arthur’s Proclamation drew on Aboriginal bark paintings, so these
treaties drew on the indigenous practice of wampum, in which strings of purple and
white mussel shells were woven into a belt by which oral traditions were recorded,
recalled, and sanctified.49 The Two-Row Wampum is a belt, a long string of such
shells in parallel purple stripes set against a white background. According to
Haudenosaunee tradition,
[y]ou say that you are our Father and I am your son. We say, we will not be
like Father and Son, but like Brothers. This wampum belt confirms our
words. These two rows will symbolize two paths or two vessels, traveling
down the same river together. One, a birch bark canoe, will be for the Indian
People, their laws, their customs and their ways. The other, a ship, will be for
the white people and their laws, their customs and their ways. We shall each
travel the river together, side by side, but in our boat. Neither of us will try to
steer the other’s vessel.50
47.
See Sherene H. Razack, Dark Threats & White Knights (2004).
48. Ann Uhry Abrams, Benjamin West’s Documentation of Colonial History: William Penn’s Treaty with the
Indians, 64 Art Bull. 59 (1982); Hezekiah Butterworth, The Wampum Belt (1897).
49. See W.J. Sidis, The Tribes And the States, chapter 3 (1935); The History and Culture of
Iroquois Diplomacy (Francis Jennings et al. eds., 1985).
50. The Two Row Wampum, Ganondagon, http://www.ganondagan.org/wampum.html (last visited May
21, 2012).
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THE LAW OF THE IMAGE AND THE IMAGE OF THE LAW
So the two art works are very different. In the seventeenth century, as we see in
the empires of North and South America, God would act as the agent of civilization
and unification, but communities would be allowed to keep their own laws. By the
nineteenth century, as we see in the empires of Australasia, Asia, and Africa, law
would act as the agent of civilization and unification, and communities would be
allowed to keep their own gods. On the one hand, and perhaps with the arrogance of
the British empire, Governor Arthur lays claims to a uniform ideal of justice which
transcends and binds all peoples. On the other hand, and perhaps because it was
drawn 200 years later, the Two-Row Wampum recognizes that the difference in
power and technology between colonial master and subject peoples cannot be
ignored. The Proclamation speaks vertically, from governors to the governed. The
treaty speaks horizontally, an agreement between peoples.
There are surely elements of justice in our dealings with indigenous peoples that
the Two-Row Wampum reveals and to which the Proclamation is blind. Researchers
in Canada have increasingly over the last few years become interested in the TwoRow Wampum as an alternative social justice model. The wampum belt does not treat
people as isolated and identical individuals, but recognizes instead that they live their
lives in vessels, communities whose difference is valuable to them and worthy of
respect, and whose trajectories may therefore not be identical. In this way, although
the wampum belt is a more abstract art form than the Proclamation, it succeeds in
describing a more concrete social reality. Indeed, the abstraction of the Proclamation’s
principle of sameness is what allows its noble idea to be converted into a force of
homogenization. Instead, the beautiful image of “the birch bark canoe” and “the
ship” afloat on the same river invites us to think of ways in which we can listen to
and help those whose life-worlds may be very different from ours in their journey,
without simply trying “to steer the other’s vessel.” As much as “equal treatment,” that
is also a notion of justice: justice embedded in communities whose difference is itself
a kind of collective equality worthy of respectful attention.51
There is a question here not just of practice or of principle, but of what, from an
aesthetic point of view, we might call perspective. The Iroquois offered to share the
river with the invaders, to live side by side with them and to move together with the
currents that affect them both. There is something welcoming and generous in that
gesture. The shared river does not only separate communities but suggests common
interests and experiences too. The language of brotherhood, like the parallel lines of
the belt itself, suggests neither sameness nor difference but closeness, and above all
implies a willingness to make room for each other. The Proclamation, for its part,
makes no such gesture. Frame B shows a scene of welcome. But it represents the
ceding of authority from indigenous to colonial rulers—an authority that, as Frames
C and D illustrate, is unitary, objective, and absolute. While the Two-Row Wampum
starts from the principle of indigenous authority over the land and proceeds to make
others welcome on it, Governor Arthur’s Proclamation starts from the fact of colonial
51.
See Will Kymlicka, Liberalism, Community, and Culture (1989); Will Kymlicka, Multicultural
Citizenship: A Liberal Theory of Minority Rights (1995).
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authority over the land and proceeds to take exclusive control of it. Of course, the
reason for this difference is that the two images are written from different
perspectives, the wampum by the indigenous people of the land and the Proclamation
by the colonial power. That is precisely the point. While our understanding of justice
and our commitment to the rule of law only pays attention to the latter voice, it will
continue to perpetrate injustice in its name. The goal of this essay has been to show
exactly how and why that can happen.
V. CONCLUSION
The ability of art to encapsulate ideas and at the same time to expand or destabilize
them is evident from this case study. Images have always been privileged media for
the articulation, dissemination, and interrogation of social forms and practices, in
largely pre-literate cultures such as early modern Europe, but no less in post-literate
cultures of affect and spectacle, such as late modern Europe.52 Art works offer a
significant diagnostic tool in our understanding and interrogation of legal ideas.
There is a critical cultural opportunity here that has gone largely unremarked.
Since European settlement in Australia, as in other colonial societies, indigenous
groups have been required to translate their distinct legal visions into the one-size-fitsall language and structures of British law.53 Yet in many cultures, art and literature are
central elements to the performance and embodiment of law.54 Traditional thinking
about law in the West has explicitly rejected such an approach, even on occasion
announcing that Aboriginal rites and dances cannot be law if they be art.55 Such a
constrained imagination has proven a genuine barrier to recognition of indigenous
law.56 We see some recognition of the need for a cross-cultural and aesthetic dialogue
about law in the Canadian context in particular, which has been more sensitive to the
relevance of languages of art and culture in the construction of law and politics.57 But
overall these forays have been limited and implicit. The grammar and vocabulary of
images could inaugurate a new cross-cultural conversation, and provide a new vehicle
of social engagement and discourse, on new and radically different terms.
52.
See Richard K. Sherwin, When Law Goes Pop: The Vanishing Line between Law and Popular
Culture (2000); Richard K. Sherwin, Law in the Age of Images, in Visual Literacy in Action 179,
179–84 (Jim Elkins ed. 2007).
53.
Stewart Motha & Colin Perrin, Deposing Sovereignty after Mabo, 13 Law & Critique 231 (2002); Paul
Patton, Mabo, Freedom and the Politics of Difference, 30 Austl. J. Pol. Sci. 108 (1995).
54. See Howard Morphy, Becoming Art: Exploring Cross-Cultural Categories (2007); John
Burrows, Recovering Canada: The Resurgence of Indigenous Law (2002); Kathy Laster,
Law as Culture (2d ed. 2001).
55.
See Peter Fitzpatrick, The Mythology of Modern Law, in Sociology of Law & Crime (Maureen
Cain & Carol Smart eds., 1992); Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 (Can.).
56. Kirsten Anker, The Truth in Painting: Cultural Artefacts as Proof of Native Title, 9 Law Text Culture
91, 111 (2005).
57.
See, for example, references to the work of Dorothy Reid in Burrows, supra note 54, at 19, 178 n. 129,
and references to the work of Bill Reid in James Tully, Strange Multiplicity: Constitutionalism
in an Age of Diversity (5th reprint 2004) (1995).
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The images that have formed the spine of this case study have given material
form and aesthetic feeling to a subject that is frequently rendered bloodless.
Separating legal ideas from cultural practices and lived experiences is an exercise in
social alienation with serious consequences. For if the rule of law is to survive,
however we understand its strengths and limitations, it will be because of the way it
speaks to us and because of the feelings it is capable of arousing in us. Without these
cultural narratives and these affective attachments, no one has any reason to care
about it, to understand it, or to improve it. There is no more moving commentary on
American ideals and history than Jimi Hendrix’ improvisation on The Star Spangled
Banner at Woodstock at the height of the Vietnam War.58 There, the orthodox
narrative of U.S. history is juxtaposed powerfully with multiple and conf licting
voices: hope and respect, but also anger, frustration, and sarcasm. The aesthetic form
allows a dialogue between ideals, myths, and reality to be expressed with remarkable
power, emotion, and concision. Hendrix’ art gives us a connection as vibrant and as
physical as a guitar string through which these questions and associations feel like
they matter to us. The depiction of law and of justice in the arts is a critical and
desperately undervalued resource in understanding law’s cultural resonances, in
depicting and contesting its historical narratives, and in constituting its emotional
place within a society or societies. One of the major tasks of twenty-first century
research is to begin to make available and to study this forgotten common wealth of
sounds and images.
58. Jimi Hendrix, Star Spangled Banner (Jan. 9, 1969), available at http://www.youtube.com/watch?v=u_k-
6FLfDkM.
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